EPA plans to scale back federal protection of waterways

Under the proposed new Waters of the United States rule, many areas with seasonal flooding, like this one in southern Indiana, would not be considered federally protected waterways. Photo by Jessie Higgins/UPI

The changes would come from proposed revisions to the EPA's Waters of the United States rule, released late last week. That rule identifies the types of waterways over which the federal government has regulatory control.

The EPA and the Army Corps of Engineers are seeking public comment on the revamped rule before it can be adopted. But the battle lines already are well-drawn, with farm and industry groups celebrating the new plan and environmentalists condemning it.

"It is not a coincidence that this was released on Valentine's Day," Hannah Connor, a senior attorney at the Center for Biological Diversity in Tucson, Ariz., told UPI. "It is nothing less than a love note from this administration to polluters. It guarantees less oversight of what people do to our watersheds. It creates a regulatory black hole."

But supporters say the new rule simply clarifies which waterways are federal.

The last WOTUS rule, enacted in 2015, broadly defined what constitutes a federally protected waterway as anything that would empty into a navigable waterway -- navigable meaning a boat could travel it. That definition could include drainage ditches and runoff from seasonal flooding.

Scientists say that definition accurately represents how water flow works. Chemicals dumped into a ditch don't stay where they are; they move through the watershed and eventually drain into larger bodies of water.

"More than a half century of scientific research has unequivocally demonstrated that the physical, chemical, and biological integrity of 'traditionally navigable' waters fundamentally depend on ephemeral, intermittent and perennial headwater streams, as well as the myriad associated lakes, wetlands, and off-channel habitats," the Consortium of Aquatic Science Societies said in a statement opposing the proposed new rule.

But, farm and industry groups say, that definition was so broad that it often was unclear what areas had federal oversight. As a result, farmers and companies sometimes spent thousands of dollars hiring consultant engineers to determine if a federal permit was required to do such things as fertilize fields or fill wetlands, according the the American Farm Bureau Federation in Washington, D.C.

"The previous rule would have treated much of the landscape as though it were water itself," Zippy Duvall, the federation president, said in a statement.

The broad definition also meant that regulators were inconsistent about what areas received federal protection, said Brian Namey, a spokesman for the National Association of Counties, which lobbied beside farm and industry groups for a revision of the rule.

Counties own the majority of America's roadways, Namey said. And most of those roadways have ditches that, under the 2015 WOTUS, may be considered federally protected.

"There was inconsistent implementation from the previous rule whether a federal permit was required for things like routine maintenance," Namey said. "I can't emphasize enough, counties prioritize being responsible environmental stewards. Nobody wants to live in a county with poor water quality. But the rules have to make common sense. If they're not practical at a local level, they're useless."

The EPA and Corps of Engineers will accept public comments on the new rule until April 16. A public hearing will be held Feb. 27-28 in Kansas City, Kan.